INTRODUCTION
The gap between the reality and the vision envisaged in the Constitution is widening in India. The focus has also been shifted from holding the fundamental rights in primacy to fitting restrictions under the reasonable category to surpass constitutional scrutiny. The constitution prescribes reasonable restrictions to fundamental rights, and Courts often should strike a balance between rights and restrictions, while it is expected that courts must make the least restriction to civil rights. However, looking at the recent decisions and even numbness of the court to the arrest and detention of students, academicians and activists, for exercising their fundamental rights, the ability of the courts in striking a balance that is least restrictive and its ability in being the guarantor of rights of citizens is questionable.
Freedom of Speech and Expression is a guaranteed fundamental right under the Constitution of India. However, many laws are employed and implemented in a way to curb dissent and shut down all opposing voices. This includes the sedition laws, AFSPA, UAPA etc, the most recent in discussion being the Contempt of Court law in India. Senior Advocate Prashant Bhushan was found guilty of contempt by the apex court, for his tweets criticising the Supreme Court and the last four Chief Justices in their role for the fall of democracy in India. Bhushan has unapologetically stood his stand defending the tweets to be his bona fide belief and has declined the court’s offer for an apology. He has been sentenced to a fine of One rupee.
Before delving into the contempt law in India, let’s look into the jurisprudence of the ‘contempt’ law and its presence in other democracies of the world.
ORIGIN & USE OF CONTEMPT LAW IN OTHER DEMOCRACIES
The contempt law is rooted in English Common law and has Monarchical origins when the King of England used to decide cases. The contempt provision then gave sanctity to the authority of the Queen and held it above public criticism. However, in a democratic system, where judges decide cases, this law is against the norms of democracy as it keeps judges and the court beyond criticism. In many foreign democracies, the contempt law has almost become inexistent, unemployed since years or has been held to be unconstitutional.
Britain, the country where India has based its contempt law upon has abolished the offence in 2013 following the recommendations of the Law Commission report of 2012. The commission report’s reasoning of its recommendations states that the contempt law is not only to save the sanctity of the courts as impartial institutions, but also to be perceived so. The purpose of the offence is not only “preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.” In the contempt case against Prashant Bhushan, this rings many bells.
An interesting instance from Britain in 1987 was when ‘The Daily Mirror’ in its report referred to judges as ‘old fools’. Declining contempt proceedings against this, British Judge Lord Templeman stated that he was indeed old and him being a fool or not is just a matter of perception.
In the United States, the offence of ‘Scandalising courts’ has been left unapplied for decades. The US supreme court also demands a ‘clear and present danger’ for invoking the law.[1] The application of the law in Canada is also in a similar position to that of USA, which requires an ‘imminent danger’.[2] Australia and New Zealand[3] demands a real risk of undermining public authority and not just a remote possibility. In all these countries, the contempt law has not been invoked since long.
Retired Justice Madan B Lokur in his recent article draws our attention to a number of instances in which various Presidents and government officials of the United States of America has bashed and harshly criticized the Supreme Court of the United States. He poses a question that if words of such powerful men in the world have not been able to shake the foundations of the second most powerful court and democracy in the world, why should the Indian Supreme court consider two tweets of a lawyer- activist a threat to the institution, that too of the most powerful court and the said to be largest constitutional democracy. This is where we should see Prashant Bhushan’s place in being a fierce and active critique of the recent political issues in India and why selectively targeting and punishing him becomes an interest and priority of the state.
CONTEMPT LAW IN INDIA
The Indian Contempt of Court can be found in Article 129, and the Contempt of Court Act,1971 lays the procedure. As this power is derived directly from the Constitution in itself, the court exercises vast discretion in deciding contempt. Further, Contempt of Court is a reasonable restriction permitted to the fundamental right of Freedom of Speech and Expression (Article 19). This gives an upper hand to the contempt law in restricting free speech in the country. Contempt law in India is used majorly to curb criticisms directed against the judiciary, while the basic jurisprudence of the contempt law is to punish those who disobey or does not respect the orders the court has pronounced. (Civil Contempt) The vague terms ‘scandalise’ or ‘tends to lower the authority of the court’ widens the discretionary power of the court in deciding the contempt cases.
Contempt of court as a restriction to Article 19 (Article 13 in the draft constitution) was a matter of debate in the constituent assembly. It seemed like a debate between the assembly members who were lawyers who defended the contempt law for preserving the authority of the court, and a few other members like Biswanath Das and RK Sidhva who insisted that Judges are not an infallible authority or mistake- free and thus a citizen should have a right to fairly criticize them.
Justice Krishna Iyer comments on the inherent danger in the Contempt of Courts Act as “A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties”
THE FINE LINE BETWEEN FAIR CRITICISM AND CONTEMPT
What constitutes fair criticism or contempt is decided upon facts of each case. But looking at the various instances in which the Indian Supreme Court has held guilty or ignored contempt charges shows that the discretion the judges have on deciding whether a ‘speech’ becomes contempt or not is wide and that the court has shown various levels of tolerance to criticism.
The contempt law as such doesn’t exist to punish every criticism targeted on the court, rather those which are malicious, unfair and which hamper the course of justice. In various cases, the court has categorised the ‘speech’ as fair comment and has taken a right- based approach holding the alleged contemnor free of charges. A comment which can be justified as truth, fair and bona fide is protected and is a valid defence against contempt. The comment should also not interfere with the administration of justice and should be made upon the individual capacity of the judge and not upon his/her judicial capacity.
In Indirect Tax Payers Association, Bangalore v. R.K Jain, the court held that ‘truth based on facts’ is a valid defence. Section 13 of the Contempt of Courts Act, 1971 also considers ‘justification by truth’ as a defence. Similarly, in Hari Singh Nagra v. Kapil Sibal, the SC dismissed contempt charges against Kapil Sibal on his comments upon judges, stating that fair criticism was to be encouraged and is essential for the effective functioning of the institution. However, these precedents didn’t save Arundhati Roy when she was held guilty for contempt or Prashant Bhushan or many others. This implies that the fine line between fair criticism and contempt is often drawn from the discretion of the judges when they sit to decide and punish their critics.
PRASHANT BHUSHAN’S CASE
Senior advocate Prashant Bhushan who is an active critique of the government has been held guilty of contempt for two of his tweets, in which he opines that the virtual court system has denied an effective legal remedy for the underprivileged and he says that history might record the role played by the Supreme Court and the last four CJI’s in the fall of democracy in India.
Bhushan mentions the role of the last four CJI’s – Justices JS Khehar, Dipak Mishra, Ranjan Gogoi and SA Bobde in diminishing the role of the judiciary as a check and balance for the acts of the government and destroying democracy. He mentions cases like enquiry on the Sahara- Birla diaries during Khehar’s time, Judge Loya investigation case during Mishra’s time, the Assam NRC, Abrogation of Article 370, Ayodhya Verdict and Sexual Harassment case during Gogoi’s time and the CAA, Migrant labourer issues during the lockdown, failure to restore 4G in Kashmir during Bobde’s times and many other cases that explicitly points out to the declining trend of the judiciary being a protector of fundamental rights and being an independent institution. The reasoning in his affidavit is clear enough to place his tweets as fair, bona fide and truthful criticism.
However, just like in the case of J. Karnan when the court refused to look into the allegations of casteism and corruption among judges made by him, the court overlooked into punishing the alleged contemnor in the instant case also. The reasoning behind the court’s decision reveals that the court has completely ignored the justification provided by Bhushan in his affidavit, clearly and precisely.
The haste and interest of the Supreme Court in prioritising the contempt case against Prashant Bhushan amidst a very restricted virtual court schedule due to the pandemic is notable. While many matters of importance like the CAA petition or the petitions from Jammu and Kashmir are still pending the court overlooked into two tweets that too exercising its power under Article 129 to punish for its contempt.
CONCLUSION
A petition challenging the contempt law as such has been filed by T.N Ram, Editor of ‘The Hindu’ along with Prashant Bhushan and former Union Mininster Arun Shourie. The petition challenges the law on the ground of being arbitrary, vague, colonial and violating Freedom of Speech and Expression. The provision is very subjective and based on the discretion of the judges, thus violating Article 14 for non-arbitrariness.[4] This case has led to a listing controversy as the petition was removed from the bench of Chandrachud and K.M Joseph.
In a nutshell, the question is, if the judiciary is not infallible, why should it stand out of criticism?
[1] Bridges v. California, 314 US 252, 270-71 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craig v. Harney, 331 US 367 (1947); Wood v. Georgia, 370 US 375 (1962).
[2] R v. Koptyo (1987), 62 OR (2d) 449.
[3] Solicitor-General v. Radio Avon Ltd. [1978] 1 NZLR 225, p. 234.
[4] For instance, in P N Dua vs P. Shiv Shankar , the respondent was not held guilty of scandalising the court despite referring to Supreme Court judges at a public function as “antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries” on account of the fact that he was Law Minister. However, in D.C. Saxena vs Chief Justice of India, the respondent was held guilty of criminal contempt for alleging that a Chief Justice was corrupt and that an F.l.R. under the l.P.C. should be registered against him. (From the petition)
